Citation Nr: 18148777 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-19 663 DATE: November 8, 2018 ORDER Service connection for a right shoulder disability is denied. Service connection for a neurological disorder of the lower extremities (claimed numbness of the bilateral feet) is denied. An effective date prior to September 18, 2012, for the grant of service connection for cervicalgia, numbness of the left hand is denied. An effective date prior to September 18, 2012, for the grant of service connection for cervicalgia, numbness of the right hand is denied. An effective date prior to September 18, 2012, for the grant of service connection for migraine headaches is denied. REMANDED The issue of a rating more than 10 percent for degenerative joint disease (DJD) of the thoracolumbar spine is remanded. The issue of an initial compensable rating for migraine headaches is remanded. The issue of an initial rating in excess of 20 percent for cervicalgia, numbness of the left hand is remanded. The issue of an initial rating in excess of 20 percent for cervicalgia, numbness of the right hand is remanded. The issue of an initial rating in excess of 30 percent for unspecified depressive disorder is remanded. The issue of an initial rating in excess of 10 percent for cervicalgia of the cervical spine is remanded. The issue of an effective date prior to September 18, 2012, for the grant of service connection for unspecified depressive disorder is remanded. The issue of an effective date prior to September 18, 2012, for the grant of service connection for cervicalgia of the cervical spine. FINDINGS OF FACT 1. The Veteran has not demonstrated evidence of a current right shoulder disability. 2. The Veteran has not demonstrated evidence of a current neurological disorder of the lower extremities (claimed numbness of the bilateral feet). 3. The RO granted service connection for cervicalgia, numbness of the left hand effective September 18, 2012, the date the Veteran’s claim for service connection was received. 4. The RO granted service connection for cervicalgia, numbness of the right hand effective September 18, 2012, the date the Veteran’s claim for service connection was received. 5. The RO granted service connection for migraine headaches effective September 18, 2012, the date the Veteran’s claim for service connection was received. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a neurological disorder of the lower extremities (claimed numbness of the bilateral feet) have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for an effective date prior to September 18, 2012, for the grant of service connection for cervicalgia, numbness of the left hand have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 4. The criteria for an effective date prior to September 18, 2012, for the grant of service connection for cervicalgia, numbness of the right hand have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 5. The criteria for an effective date prior to September 18, 2012, for the grant of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to April 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and April 2016 rating decisions issued by RO. The appeal originally included the issue of entitlement to service connection for an acquired psychiatric disorder. In April 2016, the RO granted service connection for unspecified depressive disorder and assigned a 30 percent rating and cervicalgia of the cervical spine and assigned a 10 percent rating, both effective September 18, 2012. The Veteran filed a Notice of Disagreement (NOD) with the assigned 30 and 10 percent ratings and the September 18, 2012 effective dates in June 2016. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). The Veteran was previously represented by attorney J.M.W., who withdrew representation in July 2016. In July 2016, the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, in favor of the American Legion. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for a right shoulder disability and neurological disorder of the lower extremities The Veteran contends that he has a right shoulder disability and neurological disorder of the lower extremities that onset due to injury sustained during his period of service. The service treatment records contain no complaints of, treatment for or diagnosis of a right shoulder disability. May and June 2008 service treatment records document the Veteran’s complaint of right foot numbness. However, as reflected in the May 2008 service treatment record, there were no signs of neurologic disturbance. Post-service, the October 2009 Report of VA examination reflects the Veteran’s complaint of low back pain with radiation of pain behind the hips and down both legs to heels. On examination, motor, sensory and reflex examination were all normal. Muscle strength testing was unremarkable. The May 2016 Report of VA examination of the thoracolumbar spine reflects that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He had no neurologic abnormalities or findings related to a thoracolumbar spine disability. The May 2016 Report of VA peripheral nerves examination documents that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The May 2016 Report of VA shoulder examination documents that the Veteran did not have a right shoulder disability. The claims of service connection for a right shoulder disability and neurological disorder of the lower extremities must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Here, the Veteran has presented no evidence of, nor does probative evidence show that the Veteran has current right shoulder or neurological disorder of the lower extremities. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is not competent to establish that he has a right shoulder disability or neurological disorder of the lower extremities that onset due to injury sustained in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is not competent to establish that he has current right shoulder and neurological disorders of the lower extremities. The Veteran is not competent to diagnose or offer opinion as to etiology of any current right shoulder disability or neurological disorder of the lower extremities. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection for a right shoulder disability and a neurological disorder of the lower extremities (claimed numbness of the bilateral feet) must be denied. The preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Effective Date Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). 2. Entitlement to an effective date prior to September 18, 2012, for the grant of service connection for cervicalgia, numbness of the left hand/cervicalgia, numbness of the right hand/migraine headaches An original claim for compensation for a “back injury,” bilateral hearing loss and bilateral tinnitus was received on August 9, 2009. In the February 2010 rating decision, the RO granted service connection for degenerative joint disease of the thoracolumbar spine and tinnitus. Service connection for bilateral hearing loss was denied. The original claim for compensation for headaches and numbness in the hands was received on September 18, 2012. In the appealed June 2013 rating decision, the RO granted service connection and assigned disability ratings for the cervicalgia, numbness of the left hand; cervicalgia, numbness of the right hand; and, migraine headaches effective September 18, 2012, the date the Veteran’s claims for service connection were received. The Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. Effective dates are generally determined by the date of receipt of a claim or date entitlement arose, whichever is later and here, no exceptions to the general rule are applicable. September 18, 2012 was the date of receipt of his claims and he does not suggest that he submitted any correspondence prior to that date that could be construed as a claim for service connection. The claims were received more than one year after the date of separation and therefore the effective date for service connection on the day following the date of separation from service is not applicable in this case. 38 U.S.C. § 5110(b). An effective date prior to September 18, 2012, for the grant of service connection for: cervicalgia, numbness of the left hand; cervicalgia, numbness of the right hand; and, migraine headaches is not warranted. The preponderance of the evidence is against the claims; there is no doubt to be resolved. The claims on appeal are denied. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 30 percent for unspecified depressive disorder is remanded. In June 2016, the Veteran submitted a NOD with the April 2016 rating decision that assigned a 30 percent rating for unspecified depressive disorder. Remand is necessary to issue a statement of the case (SOC) regarding the issue of entitlement to a rating more than 30 percent for unspecified depressive disorder. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 4. Entitlement to an effective date prior to September 18, 2012, for the grant of service connection for unspecified depressive disorder is remanded. In June 2016, the Veteran submitted a NOD with the April 2016 rating decision that granted service connection for unspecified depressive disorder effective September 18, 2012. Remand is necessary to issue a SOC regarding the issue of entitlement to an effective date prior to September 18, 2012, for the grant of service connection for unspecified depressive disorder. Manlincon v. West, 12 Vet. App. at 240-41 (1999). 5. Entitlement to an initial rating in excess of 10 percent for cervicalgia of the cervical spine is remanded. In June 2016, the Veteran submitted a NOD with the April 2016 rating decision that assigned a 10 percent rating for cervicalgia of the cervical spine. Remand is necessary to issue a statement of the case (SOC) regarding the issue of entitlement to a rating more than 10 percent for cervicalgia of the cervical spine. Manlincon v. West, 12 Vet. App. at 240-41 (1999). 6. Entitlement to an effective date prior to September 18, 2012, for the grant of service connection for cervicalgia of the cervical spine is remanded. In June 2016, the Veteran submitted a NOD with the April 2016 rating decision that granted service connection for cervicalgia of the cervical spine effective September 18, 2012. Remand is necessary to issue a SOC regarding the issue of entitlement to an effective date prior to September 18, 2012, for the grant of service connection for cervicalgia of the cervical spine. Manlincon v. West, 12 Vet. App. at 240-41 (1999). 7. Entitlement to a rating in excess of 10 percent for DJD of the thoracolumbar spine is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected thoracolumbar spine disability. 8. Entitlement to an initial compensable rating for migraine headaches is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected migraine headaches. 9. Entitlement to an initial rating in excess of 20 percent for cervicalgia, numbness of the left hand is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected cervicalgia, numbness of the left hand. 10. Entitlement to an initial rating in excess of 20 percent for cervicalgia, numbness of the right hand is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected cervicalgia, numbness of the right hand. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should issue a SOC addressing the issues of entitlement to increased ratings for the unspecified depressive disorder and cervicalgia of the cervical spine as well as entitlement to an effective date prior to September 18, 2012, for the grant of service connection for unspecified depressive disorder and cervicalgia of the cervical spine. The Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. 2. Schedule the Veteran for a VA spine examination to assist in determining the nature and severity of the thoracolumbar spine disability. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent diagnostic imaging and radiography, should be accomplished and all clinical findings should be reported in detail. Specifically, the examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not feasible, he or she should provide a detailed explanation for why testing could not be accomplished. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s thoracolumbar spine disability; however, his or her attention is drawn to the following: *VA examination report of May 2013 reflects the Veteran’s complaint of weekly flare-ups of back pain with sharp pain in the lower back. Rest, relaxation, heating pad, pain medication and use of a TENS unit relieved the back pain. He had forward flexion to 85 degrees; extension to 25 degrees; lateral flexion to 25 degrees bilaterally; and, rotation to 30 degrees or greater bilaterally, with no objective evidence of painful motion in any plane of motion. He could perform repetitive use testing without any additional limitation in range of motion. Guarding and/or muscle spasm was present but did not result in abnormal gait or spinal contour. He had not experienced any incapacitating episodes of intervertebral disc syndrome of the thoracolumbar spine over the past year. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Schedule the Veteran for a VA examination to evaluate the current severity and manifestations of his migraine headaches. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail with a full description of the Veteran’s migraine headache disability, including frequency and severity of headaches (i.e., if such headaches are productive of prostrating attacks and the frequency of such attacks) and the impact of the headaches on the Veteran’s economic adaptability. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s migraine headaches; however, his or her attention is drawn to the following: *VA examination report of May 2013 documents the Veteran’s complaint of frontal, throbbing headaches with nausea and phono/photophobia. He reported that his headaches recur perhaps every other month. He took Ibuprofen for his headaches. He had not missed work due to his headaches and had not experienced any incapacitating headaches. The examiner indicated that the Veteran did not have characteristic prostrating attacks of headache pain and his headaches did not impact his ability to work. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 4. Schedule the Veteran for a VA examination to assist in determining the nature and severity of the cervicalgia, numbness of the left and right hands. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent nerve conduction studies, should be accomplished and all clinical findings should be reported in detail. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s thoracolumbar spine disability; however, his or her attention is drawn to the following: *VA examination report of May 2013 reflects the Veteran’s complaint of tingling in his fingers and that he had problems with his hands “going to sleep easily.” He experienced mild constant pain and numbness of the right and left upper extremity with involvement of C5/C6 nerve roots (upper radicular group) and C8/T1 nerve roots (lower radicular group). *VA peripheral nerves examination report of May 2013 reflects that the Veteran’s complaints were suggestive of carpal tunnel syndrome; however, a normal EMG ruled out that diagnosis. The examiner stated that there was no convincing evidence for a cervical radiculopathy. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel